Friday, January 25, 2013

Appeals Court Vacates Obama Recess Appointment

By Mehmet Munur

The U.S. Court of Appeals for the D.C. Circuit ruled
today that President Obama’s appointments to the National Labor Relations Board
were unconstitutional and the Board’s actions were unenforceable.The court ruled that the Senate was in
session during the appointment and that vacancies had not arisen during the
recess of Senate—as those terms are used in the Constitution. This ruling is
important because it may invalidate all Board decisions in the last year and
also because the Consumer Financial Protection Bureau and Richard Cordray are
subject to a similar lawsuit in State Nat. Bank of Big
Spring v. Geithner, No: 1:12-cv-01032-ESH (D.C. Cir. June, 21 2012).

An administrative court judge found that the petitioner Noel
Canning had violated the National Labor Relations Act. Canning filed exceptions
to the findings with the NLRB, which affirmed the administrative court’s
findings. At the time, two of the Board’s members had been properly confirmed by
the Senate, but the remaining three Board members were recess appointments by
President Obama. Canning argued that these three Board members had not been
appointed in conformance with the Constitution and therefore there was no
quorum for the Board to conduct business. The court agreed and vacated the NLRB’s
order.

Article 2 Section 2 of the Constitution states that the
“President shall have power to fill up all Vacancies that may happen during the
Recess of the Senate, by granting Commissions which shall expire at the End of
their next Session.”The Circuit court
ruled that Recess referred to “the Recess”
of the Senate as opposed to “a Recess”
of the Senate—making this recess distinct from any adjournment of Congress. The
Circuit Court stated, “[a]s a matter of cold, unadorned logic, it makes no
sense to adopt the Board’s proposition that when the Framers said ‘the Recess,’
what they really meant was ‘a recess.’ This is not an insignificant
distinction. In the end it makes all the difference.” The opinion neatly
summarizes the pitfalls in avoiding the checks and balances built into the Constitution,
stating:

An interpretation of “the Recess”
that permits the President to decide when the Senate is in recess would
demolish the checks and balances inherent in the advice-and-consent
requirement, giving the President free rein to appoint his desired nominees at
any time he pleases, whether that time be a weekend, lunch, or even when the
Senate is in session and he is merely displeased with its inaction. This cannot
be the law.

After all, the Framers must have had distinct meanings in
mind when they used “adjournment” and “adjourn” (without the) compared to their use of the
Recess.

Going a step further, the court held that the vacancies also
had not happened during the Recess.
The Board argued that “happen” merely meant that the vacancy had to exist
during the Recess whereas Canning argued that “happen” meant arise. The court
agreed with Canning that the dictionary and contemporary meanings of the word
happen governed over the broader meaning the Board advocated.The Circuit Court stated that “[t]he term
“happen” connotes an event taking place — an action — and it would be plainly
incorrect to say that an event happened during some period of time when in fact
it happened before that time.” As a result, the court held that vacancies had not
happened during the Recess of the Senate.

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